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ELCDismissedOriginating Summons dated 16th January 2007 (application dated 30th July 2018)· [2019] KEELC 1949 (KLR)

Kasimu Sharifu Mohamed v Timbi Limited [2019] KEELC 1949 (KLR)

Environment and Land Court
30 July 2019
JOJ. O. Olola
1,319 words in judgment
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The bottom line

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A Kenyan landowner who waited months before asking for a stay lost the chance because the property had already been transferred to someone else.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Malindi (J.O. Olola, J) deals with a notice of motion dated 30th July 2018 filed by Timbi Limited, the respondent in an Originating Summons in which Kasimu Sharifu Mohamed had, by judgment delivered in April 2018, been registered as proprietor of Plot No. 503-Watamu by virtue of adverse possession. The respondent sought a stay of execution of that judgment and decree pending an intended appeal to the Court of Appeal, plus preservatory orders against Sophia Abdallahi Chacha, a third party to whom the applicant had transferred the suit property on 10th May 2018 after obtaining a Provisional Certificate of Title. The applicant opposed the application, arguing among other grounds that the court was functus officio having perfected its judgment, that Order 42 Rule 6(2) conditions were not met, and that the third party was not a party to the proceedings. Applying Order 42 Rule 6 of the Civil Procedure Rules, 2010 and the principles in Global Tours and Travels Ltd (Ringera J), the court observed that although execution may have been hurried with an ulterior purpose, the applicant had come to court too late: execution had already taken place and the premises were in the hands of a third party who had not been joined. The court declined to exercise its discretion in a manner affecting parties who may be innocent and unaware of the proceedings, dismissed the application, and ordered each party to bear their own costs. Judgment was delivered at Malindi on 30th July 2019.

Key legal issues

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Whether the requirements for a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 were met

Holding

The application failed; the applicant sought relief too late, after execution had already been completed and the property transferred to a third party

Reasoning

The respondent lodged a notice of appeal but made no application for stay until more than three months after judgment, during which time the decree was extracted, registered against the title, executed, and the property transferred to Sophia Abdillahi Chacha. The court found the applicant was trying to shut the stable doors after the horse had bolted, and that exercising discretion to affect a non-party third party would be improper.

p. 2

Legal principles established

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  • The decision whether to grant a stay of proceedings pending appeal is a judicial discretion to be exercised in the interest of justice, weighing factors such as expeditious disposal, arguability of the intended appeal, judicial time and timeliness.
  • A court will be reluctant to exercise its discretion in a manner affecting third parties who are not parties to the proceedings and may be innocent.

Court orders

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  1. 1.The orders sought in the application dated 30th July 2018 are declined
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)
  • Civil Procedure Rules, 2010Order 10 Rule 11
  • Civil Procedure Rules, 2010Order 1 Rule 10(2)
  • Civil Procedure Rules, 2010Order 22 Rule 22
  • Environment and Land Court Act, 2011Section 16
  • Employment and Labour Relations Court Act, 2011Section 16

Cases cited (2)

  • Raila Odinga & 2 Others –vs- Independent Electoral & Boundaries Commission & 3 Others
    (2013) eKLR
  • Global Tours and Travels Ltd Nairobi Winding Up Cause No. 40 of 2000
    unreported
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kasimu Sharifu Mohamed v Timbi Limited [2019] KEELC 1949 (KLR)", Case Analysis (2019). Originating Summons dated 16th January 2007 (application dated 30th July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1949/eng@2019-07-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.